Judge: IRS Must Declare under Oath What Happened to Lerner’s E-mails

Judge Emmet Sullivan, in this morning’s status conference hearing between watchdog group Judicial Watch and Department of Justice attorneys for the IRS, took what Judicial Watch president Tom Fitton calls “an extraordinary step” in the battle over recovering the records of top IRS official Lois Lerner: The IRS must file a declaration under oath regarding the missing Lerner e-mails by August 10. Meanwhile, attorneys from both sides will meet, under the supervision of magistrate judge John M. Facciola, to discuss alternate methods of recovering e-mails allegedly lost in Lois Lerner’s 2011 hard-drive crash.

In 2013, Judicial Watch filed a Freedom of Information Act request for e-mails to and from Lerner, the former head of the IRS’s tax-exempt division. The organization claims that the IRS never informed them of Lerner’s computer crash, in violation of the law. Judicial Watch learned about the two years of missing e-mails from the media. In Washington D.C.’s District Court this morning, they requested limited discovery powers, under which the court would allow the watchdog group to investigate the process by which the IRS has tried to fulfill its FOIA request — a process that Judicial Watch says has, by all indications, been inadequate. While the court did not grant them discovery, the next steps will hopefully show clearly, Judge Sullivan said in his ruling, whether discovery is needed.

Judicial Watch’s attorneys report that they were surprised to learn in open court today facts previously withheld. Counsel for the IRS claims the tax service has collected more than 20,000 e-mails to and from Lerner, a number Judicial Watch says was withheld from them in a conversation with IRS counsel earlier this week. Additionally, the IRS says an investigation into the hard drive is under way courtesy of the Treasury inspector general for tax affairs, but it cannot disclose the progress of that investigation.

Following the court’s decision, Fitton said at a press conference that he is encouraged that the court was willing to recommend procedures that are rare in FOIA lawsuits. But he said much more is needed. IRS officials have related to Fitton news of thousands of computer crashes at the IRS just this year, which indicates a potential “massive record loss” — but, said Fitton, “there seems to be little or no interest from the IRS” in looking into the matter. The organization’s disregard for the law and legal ethics, he added, indicates that they have “something to hide.”

Tomorrow, True the Vote will be in D.C.’s district court. The voter-fraud watchdog filed suit against the IRS over its application for tax-exempt status. Judge Reggie Walton will hear True the Vote’s motion to allow an outside expert to examine the Lerner hard drives to determine whether her e-mails are irrecoverable, as the IRS claims. 

Ian Tuttle — Ian Tuttle is the former Thomas L. Rhodes Journalism Fellow at the National Review Institute.

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